Inter-Basin Transfers Under Scrutiny

By Paula Garcia, Executive Director

New Mexico Acequia Association

A bill making its way through the State Legislature has raised interesting issues regarding water policy in New Mexico. HB 418, sponsored by Gail Armstrong and titled Inter-Basin Water Right Transfer Requirements, amends state water law to require that the State Engineer consider the impacts of an inter-basin transfer on the “area of origin,” or move-from basin, when deciding whether to approve the transfer. The bill as passed by its first committee would apply to applications for water transfers over 500 acre feet and would require that the State Engineer consider the following:

whether the transfer would deplete the aquifer in the move-from basin,

whether the county commission has passed a resolution regarding the transfer, and

whether the transfer is consistent with the regional water plan for the move-from basin.

The bill would affect any inter-basin transfer over a certain amount but it is most relevant to a major water transfer application in Southwestern New Mexico that is currently pending before the State Engineer. Augustin Plains Ranch, LLC, (APR) is a corporation that is proposing to drill 37 wells in the San Augustin Plains aquifer near Datil and pump 54,000 acre feet of water through a pipeline to the Middle Rio Grande.

The proposal has garnered opposition from a broad group of stakeholders including the San Augustin Water Coalition which has led the effort to enlist hundreds of protestants to the water transfer. A related effort, the San Augustin Water Report, a website by locals who like many of their neighbors are concerned about the impact of the drilling on the communities of the area. Calling the proposed project an “immediate threat to rural water rights and ranchland,” local opponents of the project have raised concerns about the effects of pumping on the water supplies not only within the San Augustin Basin but also impacts neighboring river basins. Opponents have pointed out that the project is a form of “water speculation” by a multinational corporation seeking to profit on the exporting of water for an indeterminate future use.

According to the application filed with the State Engineer, the project would involve pumping 0.1% of the aquifer to pump tens of thousands of acre feet (or 15 billion gallons per year) to users in the Middle Rio Grande. The only municipality that has indicated support for the project so far is Rio Rancho according to exhibits attached to the application. APR, the applicant, maintains that their hydrological studies suggest that the pumping will not deplete the aquifer because they will capture rainfall with some new infrastructure in the basin and enhance recharge of the aquifer. APR further claims that “no mining will occur” despite the lack of thorough and impartial hydrological studies.

The hydrological studies done by the applicant are likely to be challenged during the protest proceedings. The San Augustin Water Report published a summary of testimony by the late Dr. Frank Titus, a well-known hydrologist, to the Middle Rio Grande Conservancy District in 2008 when the proposal was initially being discussed. His assessment was that the plan to pump 54,000 acre feet from the San Augustin Plains aquifer was not as simple as portrayed by APR. Rather, he suggested that the extent of pumping would result in “mining” of the aquifer. Over time, extensive pumping could create a cone of depression that could affect flows in the Alamosa and Monticello creeks into the Rio Grande near Elephant Butte. Although it could take decades, the flow of the Rio Grande could be impacted in the same amount pumped out of the San Augustin aquifer.

Titus also points out in his testimony that it is not unusual for entities to mine aquifers in New Mexico but there are generally studies that the State Engineer can use to determine how much to pump and for how long before the aquifer is drawn down and depleted. He cautioned that a plan that claims to pump extensively over the long term without aquifer depletion may not be realistic.

HB 418 (Armstrong) does not prohibit inter-basin transfers but it adds additional criteria for the State Engineer to consider. Under current law, the State Engineer must consider three criteria in any application for a water transfer, which is the change in point of diversion, place of use, or purpose of use. The three criteria are impairment to existing water rights, conservation of water, and detriment to the public welfare of the state. The bill would require that the State Engineer consider other criteria regarding the impact to the move-from area. The additional criteria would be whether the transfer depletes the aquifer of the move-from area, whether the county commission has adopted a resolution regarding the transfer, and whether the transfer is consistent with the regional water plan. In a recent legislative committee hearing, the OSE attorneys pointed out that they may already consider county or regional plans or statements under current law but they had concerns about the provision relating to aquifer depletion.

In that regard, the comments by the State Engineer in the bill analysis for HB 418 are revealing. The OSE is concerned about the bill because it appears to “set a new standard for the acceptable level of regional drawdown in an aquifer caused by a new appropriation.” Because HB 418 appears to limit new diversions to only that amount that is recharged, it would change the way the OSE has managed mined aquifers for the past 50 years. Specifically, the OSE defines “mined aquifers” as those where diversions outpace recharge.

Historically, the OSE has administered mined aquifers to sustain an economic life of 40 years. In other words, many of New Mexico’s aquifers are “mined” and the OSE allows pumping of those aquifers so that they are essentially depleted in 40 years. This is accepted water policy in New Mexico. The OSE analysis concludes that if the new standard were to be used, i.e. that no new appropriations be allowed unless they are offset by new recharge, then no one could ever have a new diversion from a mined aquifer. The OSE raises an interesting dilemma with the language of the bill and reveals that the official policy of the state allows for depletion of mined aquifers over a 40-year time-frame.

The proponents of HB 418 have brought forward vitally important policy issues for consideration by the State Legislature and have raised broad ethical and policy questions about water policy in New Mexico. Is there anything in our laws that would prevent a multinational corporation from engaging in water rights speculation? What is in place to prevent long-term depletion of aquifers? Should water flow to the highest bidder?

If this legislation were to pass, it would be a recognition that transfers have a profound impact on the area-of-origin communities, who could potentially experience a net loss of water rights. It raises questions about the ethical underpinnings of water transfers including questions of whether natural resources and ecosystems should be commodified to benefit areas with higher populations or wealth at the expense of the move-from community. The issue of groundwater mining should also weigh heavily on the conscience of our policymakers. We have a choice to mine and deplete our aquifers or to treat our aquifers as an intergenerational trust that we can bequeath to future generations.